Terry McAuliffe’s campaign was quoted as saying this about the Attorney General:

McAuliffe spokesman Josh Schwerin said the sodomy case was another example of Cuccinelli’s “extreme agenda and uncompromising approach.”

The “sodomy case” that the campaign is referring to is this one, decided by the Fourth Circuit in March. Here’s the facts of the case:

The debate stems from a March ruling by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit that said Virginia’s “Crimes Against Nature” law, which bans oral and anal sex, was invalid in light of the 2003 Supreme Court decision. The ruling centered on a 2005 case in which a 47-year-old man was convicted of soliciting oral sex from a 17-year-old girl.

This is not a gay-rights case. The defendant in this case was a serial sexual predator of teenage girls. He was convicted of two different attempts to have sex with minor girls. This do0es not deter Mother Jones and Salon and the Daily Kos from claiming the Attorney General wants to recriminalize gay sex:

From Salon:

The website repackages the Virginia law — which has been roundly criticized as transparently targeting LGBT people — as a child safety and “anti-child predator” measure. “Keep Virginia Kids Safe!” reads the site, which goes on to warn that there are 90 “predators in neighborhoods across the commonwealth that could come off Virginia’s sex offender registry if a Virginia law used to protect children is not upheld,” a reference to the 90 individuals who have been prosecuted under the law since 2003, when the Supreme Court ruled such laws to be unconstitutional.

Daily Kos:

And they say Virginia is for lovers. So apparently, Cuccinelli thinks that the only way to stop predators is to have a blanket ban on anything that isn’t, well, on the straight and narrow.

The sodomy statute reads as follows (I am sorry this is PG-13): ‘

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.

Believe me, you don’t want to read Subsection B prior to lunch! Here’s the text for your reading pleasure. Now, I know this statute was interpreted in the past to criminalize gay sex. But not even the Attorney General seeks this statute to be interpreted in a way that violates Lawrence v. Texas (The court case that decriminalized gay sex) and says so on the Attorney General’s website [emphasis his not mine]:

“As we said when the Fourth Circuit rendered its decision in March, this has nothing to do with sexual orientation or private acts between consenting adults. In fact, the law can’t be used for those purposes. This case is about using current law to protect a minor from a 47 year-old repeat sexual predator,” said Cuccinelli. “Prosecutors use this important tool to obtain felony charges against adults who commit or solicit this sex act with minors. The law is only applied to offenses committed against minors, against non-consenting or incapacitated adults, or in public. It is not – and cannot be — used against consenting adults acting in private.“

It is , as we lawyers say, black letter law, that potentially unconstitutional statutes can be interpreted in a constitutional manner. The Virginia Supreme Court in fact did so (footnote six of the Fourth Circuit’s opinion):

After the state court of appeals affirmed his earlier sodomy convic-

tions, MacDonald sought review in the Supreme Court of Virginia.

See McDonald v. Commonwealth, 645 S.E.2d 918 (Va. 2007). MacDonald’s

efforts were to no avail, however, as the state supreme court rejected Mac-

Donald’s as-applied challenge. The court reasoned that the anti-sodomy

provision was constitutional as applied because MacDonald’s victims

were minors, and it concluded that his facial claim had not been preserved

in the trial court. See id. at 921, 924.

Now, this opinion has the potential to overthrow legitimate statutes that are needed to protect children. For example, the indecent liberties with minors section (18.2-370) has a reference to the sodomy statute as one prohibited act with a minor. So does the indecent liberties by a teacher or other custodian of a child. (18.2-370.1) I hate to sound alarmist but there is no other legal way (other than perhaps a misdemeanor contributing to a delinquency of a minor charge) to prosecute anyone for consensual sodomy with a minor or for seeking to persuade a minor to have consensual sodomy in Virginia.

Three points: First, I suppose one could argue that seventeen year old minors should be treated differently than six year old kids. I can understand that. In fact the indecent liberties statutes have a upper limit at a minor’s fifteenth birthday. I am not sure I am totally comfortable with that as an age of consent. But the anti-sodomy statute has no such limit. I think it should be illegal (not necessarily a felony) for unemancipated minors to have sex period until they are 18 or if they are married. But that is a decision for elected officials not courts.

Second, the Attorney General of Virginia has to defend the laws as written and adopted, in contrast to the craven refusal of other officials to enforce their laws. Some mechanism must be put into place by the courts to require a state’s defense of its own laws when it’s leaders refuse to do so. The Attorney General did not prosecute this case, Commonwealth’s Attorneys do and it was prosecuted in 2005 long before Cuccinelli came to office. But he is defending it to the last inning – to the highest Court in the land.

I cameintoblogging supporting a special session of the Virginia General Assembly in the last state election cycle (I was told privately that this issue was very helpful to the Cuccinelli campaign) and I will do so again this time: If the Supreme Court does not reverse this Fourth Circuit decision, then let’s clean up the laws so that it is clear: Children are off-limits to sexual predators in Virginia.

Finally, it is the McAuliffe campaign who is playing politics with this issue. Cuccinelli is trying to re-criminalize gay sex here. I would oppose such efforts, too. How anyone can oppose this effort to stop predators escapes me. How the media can enable this is equally mystifying. Terry McAuliffe may well need to hope that the Virginia voters believe the Daily Kos version of this, or he may have a tough time being elected. Let’s hope he has that tough time.

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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